Kenyatta – what’s it all about?

On the eve of President Uhuru Kenyatta’s status meeting at the International Criminal Court on Wednesday, The Hague Trials Kenya and Justice Hub put a number of questions to Dov Jacobs, assistant professor of law at Leiden University.

Q: Why is this a critical juncture?

A: It’s a critical juncture because – considering the number of delays there have been – the judges are aware that they have to take a decision on the continuation of the case, having already postponed it a few times.

Q: What kinds of decisions could the judges make on Tuesday when the Kenyan government cooperation is being discussed?

A: Based on what we know – although there are a number of elements that are confidential – it’s likely that the chamber will continue to request that Kenya cooperates. There may be some technical changes the judges agree to, but in principle I cannot imagine that they will be telling Kenya not to cooperate.

Q: But will the chamber show which way they are bending?

A: I can’t imagine the chamber throwing out the whole request from the prosecutor. Earlier this year, they actually supported the prosecution’s request for cooperation. They might ask for more clarification. But it’s difficult for us to tell whether what the prosecution is asking for is just a fishing expedition or not. As usual, the defence sounds convincing when they say what they say and the prosecutor too – so it’s difficult to judge without access to all the details.

Q: Is it possible the judges will give the government a deadline by which time they have to cooperate?

A: There are three options. First is to reject the request from the prosecutor, which is unlikely. Second is to give time to Kenya to cooperate, with a deadline. And third is to make a finding that Kenya is not cooperating and refer Kenya to the Assembly of States Parties [the ICC’s governing body]. And that would be the most radical solution. Even though the consequences would be very minimal.

Q: What sanctions are there?

A: Basically there’s a slap on the wrist. If that doesn’t work, then there would be a special committee set up by the chair of the ASP. Basically, there aren’t any coercive sanctions possible.

Q: What about on Wednesday? Why have the judges asked Kenyatta to be there?

A: They are talking about whether the case will or will not continue. So I don’t find it unreasonable to request his attendance. He hasn’t been to The Hague in a few years.

Q: What could they be saying to him?

A: First of all, everyone knows the case will not continue right now. The prosecutor has said herself that she does not have enough evidence. In a nutshell, there are two options: one is another postponement until such time as the government of Kenya cooperates. If on the Tuesday they give the government say three, four or six months, then they could mirror that on Wednesday. That would be the middle ground. The second option is to say no evidence equals no trial. That’s it.

Q: What’s your guess?

A: The logical conclusion is no evidence equals no trial. A defendant should not suffer the consequences of a state not cooperating with the court. But it’s complicated. The problem here is that the state is the defendant. But in principle, if we’re going to maintain the illusion that the state and the defendant are two separate things, then the trial should end.

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